Opalinski v Coordinator-General
[2013] QLC 57
•5 September 2013
LAND COURT OF QUEENSLAND
CITATION:Opalinski v Coordinator-General;
Opalinski v Chief Executive, Department of Transport and Main Roads [2013] QLC 57
PARTIES:Zdzislaw Joe Opalinski
(applicant)
v
Coordinator-General
Chief Executive, Department of Transport and Main Roads
(respondents)
FILE NO:AQL338-10
AQL033-12
DIVISION:General Division
PROCEEDING: General applications brought by the applicant that the proceedings be heard together.
DELIVERED ON: 5 September 2013
DELIVERED AT: Brisbane
HEARD ON: 8 August 2013
HEARD AT:Brisbane
MEMBER:W A Isdale
ORDERS:1. The applications for the two matters to be heard together are refused.
2.Any application for costs is to be filed and served within 14 business days of the publication of these reasons and any reply is to be filed and served within 14 business days of the application.
CATCHWORDS: Applications for proceedings to be heard together – Uniform Civil Procedure Rules 1999, r 79 – two separate resumptions of land giving rise to separate claims for compensation under the Acquisition of Land Act 1967 – land taken from the same parent parcel in different years by different constructing authorities for different purposes – whether compensation claims should be heard together – consideration of relevant factors – exercise of discretion – applications refused.
Acquisition of Land Act 1967
Uniform Civil Procedure Rules 1999
Berry & Anor v Gold Coast City Council (2011) 32 QLCR 251; [2011] QLC 53
Bishop v Bridgeland Securities (1990) 25 FCR 311
Board of Trustees of the Brisbane Grammar School and Brisbane City Council (2011) 32 QLCR 348; [2011] QLC 69
Board of Trustees of the Brisbane Grammar School v Brisbane City Council (No 2) [2012] QLC 35
Cameron v McBain [1948] VLR 245
Cousins v Cousins (1948) 51 WALR 57
Ghose v CX Reinsurance Co Ltd [2010] NSWSC 110
Humphries v Newport Quays Stage 2A Pty Ltd [2009] FCA 699
APPEARANCES: Mr D Gardiner, instructed by Bradley Munt & Co solicitors for the applicant.
Mr D O'Brien, instructed by Corrs Chambers Westgarth lawyers for both the respondents.
Background
The Coordinator-General's resumption
Acting pursuant to the Acquisition of Land Act 1967 (the Act), the Coordinator-General by a taking of land notice published on 14 December 2007, acquired easements over land owned by the applicant. The easements were for the purpose of water pipeline infrastructure which was part of the Western Corridor Recycled Water Scheme. The applicant referred his claim for compensation to the Court on 24 August 2010.
The Court made its first Order in this proceeding on 11 November 2010 and a subsequent 14 Orders for the progress of the proceedings, including an Order on 5 March 2013 that the applicant pay the respondent the sum of $1,500 for the costs of the proceedings on that day.
The Department of Transport and Main Roads’ resumption
The Department of Transport and Main Roads, also proceeding under the Act, by a taking of land notice published on 12 June 2009, took parts of the applicant's land for the purpose of the Ipswich Motorway. The applicant referred his claim for compensation in this second matter to the Court on 17 January 2012.
The Court made its first Order in this proceeding on 20 February 2012 and has subsequently made a further six Orders.
The present applications
In both cases, the last two Orders made were to progress the applicant’s desire to join the two claims for compensation. This desire crystallised with the filing in both cases on 22 April 2013 of General Applications in identical terms. Partly superceded by events, the main content of the applications is the request for a Court Order that both of the compensation claims be "heard together". The remaining active content of the applications is for an Order for disclosure. At the time of hearing the applicant was not ready to formulate the precise terms of the disclosure sought so Orders were made for the progress of that part of the application separately. The question of hearing the two claims together was fully argued and in the interests of the parties will be dealt with without waiting for the disclosure aspect to be finalised by further submissions by the parties.
The written submissions filed on behalf of the applicant refer to an Order for "joinder" being sought and to r 60-62 and 69 of the Uniform Civil Procedure Rules 1999 (UCPR). In response to questions from the Court in relation to this, counsel for the applicant made clear that what was being sought was not joinder of the proceedings but rather that the two matters be heard together in accordance with r 79 of the UCPR, which provides that:-
"79. Sequence of hearings
The court may order that 2 or more proceedings be heard together or in a particular sequence."
The grounds advanced
The applicant's grounds for the Order sought are set out in detail in Attachment B to each application. Those grounds are:-
"1. The land affected by the taking of land in the Claim Against the Coordinator General and the land affected by the taking of land in the Claim Against the DTMR is the same (Lots 2, 3, 4 and 5).
2. Subject to responsive pleadings by the Coordinator General and the DTMR, the issue of 'highest and best use' is common to both claims.
3. Experts have been nominated in the same fields in both claims viz:-
a. traffic;
b. hydraulic engineering;
c. civil engineering;
d. town planning; and
e. valuation.
4. The same experts have been nominated for both parties in:-
a. hydraulic engineering; and
b. civil engineering;
5. Substantially similar, if not identical, issues will have to be addressed in both claims in respect of:-
a. traffic (access);
b. hydraulic engineering (flooding);
c. civil engineering (infrastructure costs and feasibility);
d. town planning (application of the 2006 Planning Scheme to the Applicant's land).
6. The commonality of the issues is reflected in the fact that the After Plan in the Claim Against the Coordinator General is the same as the Before Scenario in the Claim against the DTMR.
7. It would be inappropriate to have separate hearings, with separate evidence, in respect of common issues because it has the potential to give rise to inconsistent findings.
8. In respect of access (the issue addressed by the traffic engineers), the Applicant asserts that the DTMR has responsibility to provide an access to the Applicant's land as a result of the removal and/or restriction of access to the Applicant's land and:-
a. it is appropriate that both the Coordinator General and the DTMR be heard on the determination of this issue; and
b. it would be inappropriate for the issue to be determined in the Claim Against the Coordinator General if the DTMR was not heard on the issue;
9. It is in the interest of justice (both as to cost and time efficiencies as well as the avoidance of inconsistent findings)."
The evidence introduced by the applicant
Counsel for the applicant provided the Court with a plan of the land and copies of five single-sheet documents, which became Exhibit 1. In the order presented, the documents are:-
1. A letter dated 20 May 2004 from Garry Turnbull Architecture stating that a proposal for a 3 level storage area, together with a games hall and dog kennels, is acceptable to council town planning requirements. This letter is addressed to the Ipswich City Council and refers to a pre-lodgement meeting.
2. A letter dated 19 April 2005 from Colin Wisemantel of Wisemantel & Co, Accountants, Tax Agents and Business Advisors. It is addressed to the District Director, Metropolitan District, South East Queensland Region, Department of Main Roads. It refers to the Department's refusal to allow the Ipswich City Council to develop Mr Opalinski's property at 46-48 Brisbane Road, Riverview and seeks a swift resolution approving development or by the Department acquiring the property.
3. A letter dated 27 June 2005 from the District Director (Metropolitan) of the Department of Main Roads to Wisemantel & Co in reply to the letter of 19 April 2005.
4. A letter dated 30 May 2002 from Mr Opalinski to Mr Les Louis of the Department of Main Roads to the effect that his plan for development has been stopped by the Ipswich Motorway Project.
5. A memorandum dated 5 June 2002 from Mr Les Louis to the District Director (Metropolitan) concerning the letter from Mr Opalinski.
Exhibit 2 tendered on behalf of the applicant is a single sheet copy of an e-mail dated 21 April 2009 from Allan Woolard, Valuation and Compensation Coordinator, WaterSecure to Terry Gannon at the Department of Main Roads. Mr Woolard states in this e-mail that he sees advantages in different valuers being appointed by both organisations and requests comments on that suggestion.
The position of the respondents
Both respondents are represented in these two proceedings by the same solicitors and counsel and may be thought of as separate flowers of public administration which spring from the same root, the Crown. They oppose the applications to hear the matters together. Their position is that although, as the applicant points out, both matters could be said to have reached the same procedural stage with the filing on 18 June 2013 of an amended, and in one case further amended response to the applicant’s statement of facts issues and contentions, the true progress of the matter is, it is said, not disclosed by that one indicator. It is pointed out for the respondents that the only two remaining steps prior to the hearing of the Coordinator-General matter are:-
1. A supplementary meeting and report of the traffic engineers; and
2. A meeting and joint report of the valuation experts.
This is contrasted with the other proceeding on which no substantial work has yet been carried out.
The evidence introduced by the respondents
On behalf of the respondents the evidence consisted of an affidavit filed on 31 July 2013. It is sworn by Luke James McDonald, a partner of the firm of Corrs Chambers Westgarth, the solicitors for the respondents. Mr McDonald has the conduct of both proceedings for the respondents. He was not required for cross-examination and his affidavit is not contradicted by any sworn evidence; it is unchallenged. The deponent gives four reasons why the proceedings should not be heard together. They are:-
1. The different issues in the proceedings;
2. The difference in the state of preparation of the proceedings;
3. The delay by the applicant in bringing the applications for joinder of the proceedings; and
4. The increased Court time and costs likely to be incurred should the proceedings be joined.
The import of the assertion that the issues are different is that the resumptions are for different purposes at different times and that there will be differences in the highest and best use of the land at the different times. It is stated that in the resumption by the Coordinator-General the critical issue will be the extent to which, if at all, the easements sterilise the development potential of the land. In the case of the other resumption it will be the value of the land taken.
In Mr McDonald's opinion, subject to the taking of the two remaining steps, a trial date for the Coordinator-General’s matter could be obtained in 2013. He expresses the view that the other case requires a substantial amount of work to be done and would be ready for hearing in another 12 months. He points to the failure by the applicant to take any steps to align the two proceedings in a period of over 9 months which, he states, has resulted in prejudice to the respondents who have proceeded on the basis that the matters are separate and expended substantial costs on that basis. The applicant asserts that the issues in both cases can be said to be the same, namely finding the highest and best uses of the land in each case.
The proposed witnesses
The respondents have engaged their proposed witnesses and the matter of witnesses is not an issue for them. For the applicant, however, it is desired to engage one group of witnesses for both matters and, it is asserted, achieve savings by having them give evidence in both matters at the one time. It is not the case, however, that there has been any evidence introduced of whether such savings could be expected or of their extent. It is simply presented as if it were self-evident. The respondents point to this lack of evidence and contrast it with the uncontradicted evidence in the form of the affidavit of Mr McDonald.
Delay
In response to questions from the Court, the applicant made clear through his counsel that he understood that his application would delay the proceedings, in that the hearing of the Coordinator-General's matter would be postponed if it was to be heard with the other matter, which is much further from being ready for hearing. The applicant nevertheless wished to have the hearings combined in pursuit of economy.
The respondents were antipathetic to delaying the hearing of the Coordinator-General's matter, which their client seeks to have resolved, pointing out that it has taken 3 years to get to the present state of preparation, with delay by the applicant being a feature of the case. They also point to complexity in managing a combined trial.
The relevant law
Rule 79 of the UCPR is, in its terms, inscrutable, only providing for what the Court may do. Assistance in exercising the discretion is able to be gained from the authorities to which the Court was referred.
In Humphries v Newport Quays Stage 2A Pty Ltd[1] Besanko J said that:-
[1] [2009] FCA 699.
"The critical question then is whether it is appropriate that the proceedings be tried together. In determining this question, the relevant factors are as follows:
1.Are the proceedings broadly of a similar nature?
2.Are there issues of fact and law common to each proceeding?
3.Will witnesses (lay and expert) in one proceeding be witnesses in one or more of the other proceedings?
4.Has there been an alternative proposal put forward that there be a test case and have the parties agreed to abide the outcome, or, at least, the determination of common issues of fact and law?
5.Is there a prospect of multiple appeals with substantial delays if the proceedings are not tried at the same time?
6.Will there be a substantial saving of time if the proceedings are tried at the same time, compared with each proceeding being tried separately?
7.Will an order that the proceedings be tried at the same time create difficulties in terms of trial management, complexity of procedural issues and difficulties in determining cross-admissibility of evidence?
8.Is one proceeding further advanced in terms of preparation for trial than the others?
9.Are there parties to one or some only of the proceedings who will be inconvenienced if all of the proceedings are tried at the same time?"[2]
[2] [2009] FCA 699 at [11].
The learned President of this Court considered this in Berry & Anor v Gold Coast City Council[3] where Her Honour said:-
[3] (2011) 32 QLCR 251; [2011] QLC 53.
"[18]As s.79 does not say anything about the matters which the Court is to take into account in deciding whether to make an order under the section, it appears that the Court has an unfettered discretion as to whether to make such an order.
[19]The authorities indicate that a number of factors have been considered relevant in exercising such a discretion. There are no inflexible rules. In Cameron v McBain Herring CJ said that –
"The question would seem to be whether in all the circumstances it is convenient that the actions be consolidated, and in deciding whether it is convenient, regard may be had to such matters as the desirability of avoiding multiplicity of actions, and the saving of time and expense. At the same time the interests of the parties should not be prejudiced by the making of an order."
[20]In Bishop v Bridgeland Securities, Wilcox J set out the principles which he considered should guide the exercise of such a discretion. He said that the basic principle to be applied is that the Court should take whatever course seems to be most conducive to a just resolution of the dispute between the parties, having regard to the desirability of limiting, as far as practicable, the cost and delay of litigation.
[21]In Ghose v CX Reinsurance Co Ltd Austin J said that the task of the Court is to 'work out pragmatically whether the most efficient course consistent with the requirements of fairness would be consolidation, a joint hearing, sequential hearing, entirely separate hearings or something else (such as determination of separate questions prior to or after the hearing of the remainder of the proceedings).” (Citations omitted.)
The President concluded that:
"… it is necessary to balance all the relevant factors in deciding whether to order a joint hearing."[4]
[4] [2011] QLC 53 at [23].
The learned President applied these considerations in Board of Trustees of the Brisbane Grammar School v Brisbane City Council[5] and in Board of Trustees of the Brisbane Grammar School v Brisbane City Council (No. 2)[6], in the first case refusing the application for a joint hearing and in the second case allowing it when the circumstances had changed.
[5] [2011] QLC 69.
[6] [2012] QLC 35.
It was urged on behalf of the applicant that in order to address the complexity of hearing both matters together Orders could be made along the lines suggested by the President in the last-mentioned case[7]. In that case the President proposed that the addresses of counsel and the opening of their cases should clearly be referable to each case and that the evidence of witnesses be likewise specifically directed. There was no particularised proposal put forward on behalf of the applicant to address these aspects as they might be expected to arise if the two present cases were heard together.
[7] [2012] QLC 35 at [23].
It was submitted on behalf of the respondents that the decision in the Coordinator-General's matter may help to resolve the other case as it will necessarily address whether and if so, to what extent, that taking of easements sterilises the land of its development potential. The critical issue, it is argued, is access and which, when decided in the first case will inform the second. I note that the same Court Member is allocated to hear both cases so there is no patent risk of inconsistency in judicial approach inherent in them being continued to be dealt with separately. There is no reason why the Department of Transport and Main Roads would not be able to provide any relevant evidence in relation to access in the Coordinator-General’s case should that be necessary.
The differences in the proposed witnesses
The applicant proposes to use the same witnesses in both cases. They are:
1. Damien Bitzios – traffic engineer.
2. Neil Collins – hydraulic and water resources engineer.
3. Dylan Porter – town planner.
4. Greg Jorgensen – valuer.
The respondent's witnesses vary somewhat. They are:
For the Coordinator-General
1. Maurice McAnany – civil engineer.
2. Robert Holland – traffic engineer.
3. Trevor Johnson – hydraulic engineer.
4. John Gaskell – town planner.
5. Craig Ehlers – valuer.
For the Department of Transport and Main Roads
1. Maurice McAnany – civil engineer.
2. Colin Beard – traffic engineer.
3. David Perkins – town planner.
4. Savas Varitimos – valuer.
The extent of variance in the witnesses for the respondents is plain.
Conclusion
Exhibits 1 and 2 for the applicant indicate that the Ipswich Motorway stopped the applicant's intended development and suggest a belief from the respondents’ side that the use of different valuers by each respondent was perhaps desirable in an attempt to obtain consistency, although how having different valuers would be likely to achieve that laudable goal is not readily apparent.
In considering all aspects of these cases and with the benefit of the authorities to which I have referred, I particularly note the following:
1. The Coordinator-General’s matter is, after 3 years of close attention and case management by this Court, including a costs order against the applicant, relatively much closer to trial than the other matter.
2. That other matter, in the opinion of Mr McDonald, would not be ready for hearing for approximately another 12 months[8] whereas in the Coordinator-General's matter Mr McDonald is of the opinion that the parties would be likely to be able to obtain a trial date before the end of 2013.[9]
3. Mr McDonald was not required for cross-examination and there is no evidence which contradicts this sworn material.
4. The applicant accepts that combining the two matters will result in a delay in hearing the Coordinator-General's matter and wants that delay in the hope of saving costs. However, there is no evidence of the quantum of any overall saving in time or costs that could be expected.
5. The respondents want the matters to proceed without delay.
6. The applicant submits that the same issue will be relevant in both cases, the highest and best use of the land. The applicant does not agree with the respondents' contention that findings on the fact of or extent of sterilisation of the land's development potential by the Coordinator-General's taking of easements and the resulting access aspects will potentially benefit the determination of the other matter. I am satisfied that this point is a valid and significant consideration in favour of determining the Coordinator-General's matter first.
7. Both cases will be heard by the same Court Member whether or not the cases are heard together.
8. There is a public interest in the timely and efficient delivery of justice by the Court which, together with the desire of the respondents for no delays, outweighs the applicant's willingness to accept a delay as a necessary consequence of granting the applications.
9. I am not satisfied that there would be any prejudice to the applicant from not granting the applications for the matters to be heard together beyond the incurring of the costs necessarily associated with the two proceedings which the applicant has brought and, until relatively recently been content to have conducted separately.
10. I am satisfied that the Coordinator-General would be unjustifiably prejudiced by having the case brought against that official delayed so as to integrate its hearing with that of the other matter.
For these reasons the applications are both refused.
[8] Affidavit of Luke James McDonald filed 31 July 2013 [84].
[9] Affidavit of Luke James McDonald filed 31 July 2013 [75].
Costs
Any application for costs is to be filed and served within 14 business days of the publication of these reasons and any reply is to be filed and served within 14 business days of the application.
Orders
1.The applications for the two matters to be heard together are both refused.
2.Any application for costs is to be filed and served within 14 business days of the publication of these reasons and any reply is to be filed and served within 14 business days of the application.
WA ISDALE
MEMBER OF THE LAND COURT
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